One Tennessee Prosecutor Says He Won’t Enforce Controversial Abortion Law

A Tennessee law will soon require doctors to inform patients seeking medication-induced abortions that the process can be reversed halfway through, a claim that experts say isn’t grounded in science. Now, the Nashville district attorney said he won’t enforce the law, arguing that requiring doctors to provide the information is unconstitutional. 

The state this summer passed the law, which goes into effect on October 1, as part of a package of measures imposing restrictions on abortion, including a “heartbeat” ban, which generally restricts abortion after six weeks. The law will require abortion providers to post signs informing patients that a medication abortion—which requires two pills taken up to 48 hours apart—can be reversed halfway through by forgoing the second pill and taking a large dose of a different medication. Doctors will also have to tell patients that the procedure can be reversed.

Failure to take these steps could result in felony charges, fines, and up to six years in prison.

Six other states besides Tennessee require abortion providers to tell patients medication abortions can be reversed. In two other states—Oklahoma and North Dakota—courts have blocked the laws from going into effect.   

Planned Parenthood, the Center for Reproductive Rights, the ACLU of Tennessee, and five Tennessee abortion providers sued over the law last month, saying the new notification requirements violate doctors’ First Amendment rights protecting them from “compelled speech” by “forc[ing] physicians … to communicate a government-ordered message with which they and the overwhelming consensus of the medical profession disagree.”

The groups claim that the process of medication abortion reversal “is wholly unsupported by reliable scientific evidence and has been rejected by the field’s trusted medical authorities, including the American Medical Association and the American College of Obstetricians and Gynecologists.” They also point to studies that raise concerns that maintaining a pregnancy after starting the process of a drug-induced abortion may cause second-trimester miscarriages, stillbirths, and birth defects.

The suit was filed in federal district court against the state attorney general, the state commissioner of the Department of Health, and four district attorneys of the state’s most populous counties. The state attorney general has argued against the lawsuit, stating that the new law does not violate the abortion providers’ rights to free speech because they are still allowed to say they disagree with the mandated statement about abortion reversals.

Three of the four district attorneys named in the lawsuit submitted statements that seemed to agree with the attorney general’s position, saying the “provision is silent regarding criminal liability for an abortion provider who provides the required disclosures but expresses disagreement.”

But Glenn Funk, the Democratic district attorney in Davidson County, which includes Nashville, last week independently filed a statement siding with the abortion providers. Funk said Attorney General Herbert Slater, a Republican, refused to file the declaration, even though the attorney general usually represents local prosecutors in this kind of litigation. 

Funk wrote that he does not think requiring doctors to provide information about abortion reversals is constitutional and “therefore [he] will not enforce those provisions.”

“As long as I am the elected district attorney for the 20th Judicial District, I will not prosecute any woman who chooses to have a medical procedure to terminate a pregnancy or any medical doctor who performs this procedure at the request of their patient,”  Funk wrote. “Further, I will not prosecute or sanction an abortion provider who states, verbally and/or in writing disagreement with the disclosures required by the legislature.”

“With regard to reproductive issues, the criminal law must not be used by the state to exercise control over a woman’s body,” he concluded.

Republican Gov. Bill Lee responded to Funk on Twitter, although he didn’t mention the Nashville prosecutor by name. "A district attorney purposefully disregarding current, duly enacted laws by the legislature is a grave matter that threatens our justice system and has serious consequences," Lee said. "The rule of law is the cornerstone of our legal system, and we all take an oath to uphold the law, not to pick and choose what laws to follow based on politics or personal feelings."

Reproductive rights groups praised Funk’s declaration. Ashley Coffield, the president of Planned Parenthood of Tennessee and North Mississippi, said in a statement that the Nashville DA had “channeled the legacy of Justice Ruth Bader Ginsburg,” who died on September 18. 

Funk “made a clear and unequivocal statement that politicians should not be criminalizing doctors and forcing them to spread false information with patients," Coffield said.